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The premier source for labor and employment law updates on case law and legislative developmentsWed, 21 Nov 2018 14:44:04 +0000http://wordpress.org/?v=2.8.6enhourly1African-American janitor unable to show race or age discrimination based on manager’s old Facebook postshttp://www.employmentlawdaily.com/index.php/news/african-american-janitor-unable-to-show-race-or-age-discrimination-based-on-managers-old-facebook-posts/
http://www.employmentlawdaily.com/index.php/news/african-american-janitor-unable-to-show-race-or-age-discrimination-based-on-managers-old-facebook-posts/#commentsWed, 21 Nov 2018 14:44:04 +0000Joy Waltemathhttp://www.employmentlawdaily.com/?page_id=21152By Harold S. Berman J.D.

An African-American male employed as a janitor at a Ford dealership, who was later transferred to a lower-paying position when a Caucasian general manager outsourced janitorial work, could not claim race discrimination under Title VII, age discrimination under the ADEA, or retaliation, ruled a federal district court in North Carolina. The manager’s ostensibly racially provocative Facebook posts were made years before he began working at the dealership, and the employee offered no evidence he made any racially inappropriate remarks while at work. Further, the outsourcing was part of a larger effort to cut costs. Accordingly, the court granted the dealership’s summary judgment motion, finding no evidence that the general manager’s decision displayed racial animus (Neal v. Green Ford, LLC, November 15, 2018, Schroeder, T.).

Facebook posts. The employee, an African-American male, worked as a janitor for a Ford dealership. In May 2016, the dealership hired a new general manager, who was Caucasian. Before the new general manager started, the employee looked up his Facebook page, which contained posts he considered to be racist. The posts allegedly included statements critical of President Obama, a joke about Mexican immigrants, and anti-Muslim and other anti-minority statements.

Outsourcing. Shortly after he began, the new general manager restructured the janitorial department’s hours and work schedule. He demoted the employee’s supervisor, an African-American, assigning his supervisory responsibilities to a Caucasian. Shortly after, the general manager decided to eliminate the janitorial department, and instead outsource janitorial work, both because of complaints about the quality of the work, and to save costs. The employee was offered and accepted a position in the dealership’s detailing department, which paid less. His former supervisor also was given a new position.

The employee told HR he intended to file an EEOC complaint. He asked the HR director why he was not considered for “predominantly Caucasian departments” and was told he had no experience performing the work of those departments. Three weeks after moving to the detailing department, the employee resigned. He sued under Title VII and the ADEA, alleging race and age discrimination, and retaliation. The dealership moved for summary judgment.

Race discrimination. The court dismissed the employee’s race discrimination claim, first rejecting his contention that the general manager’s Facebook posts evidenced race discrimination. Regardless of the content of the posts, the employee could not show any connection to the general manager’s employment decisions. The posts dated back to 2013, years before the manager’s decision to outsource janitorial work and reassign the employee.

Nor was there any evidence the manager either spoke about the posts or made similar posts while at the dealership. The employee looked up the posts independently, and otherwise would not have known about them as the manager never sent any posts to the employee or asked him to look at any posts. Nor did the employee observe the manager make any racially inappropriate comment while at work at the dealership.

The employee also alleged that when the manager gave him a raise while still a janitor, he commented that he could get Hispanics to work for less. Although the remark may have been insensitive, it did not show racial animus, but rather concern about costs.

Transfer. Even if the employee was performing his job satisfactorily when he was transferred to the detailing department, which was disputed, he brought no evidence that his transfer was discriminatory. The Caucasian worker whom the manager tasked with supervising the janitorial department, did not assume the responsibilities of the employee’s African-American supervisor who worked as a janitor. The Caucasian merely checked to ensure the work was completed. Additionally, the manager had given the employee a raise only a few weeks earlier.

Nor could the employee show that his position was filled by an individual outside his protected class. His position was outsourced to an agency comprised of numerous individuals, and there was no evidence the dealership knew of or controlled the racial make-up of the agency’s workers.

There also was no evidence showing that the dealership failed to eliminate the employee’s janitorial position in a racially neutral manner. The dealership’s outsourcing of janitorial work was one of several measures it took to cut costs. The only other member of the janitorial department, who also was African-American, was given a new position with the same pay. The employee’s conclusory allegation, unsupported by evidence, that the dealership should have cut costs instead in other departments with higher salaries, was insufficient to show pretext.

Age discrimination. The court also granted summary judgment on the employee’s age discrimination claim, rejecting his argument that the dealership practiced age discrimination by outsourcing his work to an agency that used younger workers. The agency was independent, and so its use of younger workers without more, was not evidence of age discrimination.

Although the employee, at 45 years old, fell within the ADEA’s protections, he could not show that he was replaced by a substantially younger individual. He was unfamiliar with the arrangements between the dealership and the agency, and brought no evidence of the age of the agency’s workers. As with the employee’s race discrimination claim, he could not show the dealership’s stated reason of cost-cutting was pretextual.

Retaliation. The employee’s retaliation clam also failed. He told HR of his intention to file an EEOC complaint only after his janitorial position was eliminated and he already had been reassigned to a new position. Consequently, there was no causal connection between any protected activity and his adverse employment actions. Nor did the employee offer evidence that the general manger was aware of his stated intent to file an EEOC complaint.

Hostile work environment. Further, the employee could not successfully claim a hostile work environment that led him to resign. He produced no evidence that he suffered any unwelcome harassment based on his race or age.

Though a hotel waitress told her immediate supervisor that a guest sexually harassed her two years before he was banned from the hotel, she did not use the reporting channels set forth in the employee handbook, and the HR department acted promptly to ban the guest once it did learn of the conduct, concluded a federal district court in Texas. Granting summary judgment against her Title VII hostile work environment claims, the court also found that the hotel acted promptly (within minutes) in banning a second guest who behaved inappropriately with her. Her claim regarding a coworker’s offensive statement failed because it was not severe or pervasive. Finally, her retaliation claims failed because there was no evidence the employer took action against her because of her reports of harassment and the employer was not responsible for the alleged retaliation by the coworker, who she claimed poorly prepared food to lower her tips (Johnson v. Hyatt Corp., November 8, 2018, Garcia, O.).

Harassed by guests. The employee claimed three individuals harassed her during her time as a waitress in a hotel bar. First, a guest made sexually explicit comments and advances towards her. She reported his behavior to her supervisor, but no immediate action was taken, and the supervisor did not inform the HR department. On another occasion, a second guest grabbed her, kissed her, and bit her while she was serving his table. She did not immediately report this, but another guest saw and reported the encounter. The employer asked the employee if she wanted to press charges, but she declined. She then called the police, who arrested the guest for assault. The employer banned him from the hotel. As part of the investigation into that incident, the employee told the HR department about the sexually explicit comments from the first hotel guest. The HR department contacted the guest and he agreed not to return to the hotel.

Coworker’s misconduct. Two months later, a cook at the bar told the employee she “look[ed] like a f*cking hooker.” She reported the incident to his supervisor, who asked her a series of insensitive questions (including what she did to provoke the comment). The coworker was issued a reprimand.

Lawsuit. The employee brought hostile work environment and retaliation claims against the employer, arguing that it failed to adequately respond to the incidents. She also asserted that, following the reports of harassment, the employer modified her schedule to give her unfavorable shifts, the coworker’s supervisor subjected her to unjust scrutiny, and the coworker intentionally mis-prepared her food orders so she would receive reduced tip income. The employer moved for summary judgment.

Hostile work environment claim fails. The employer argued that the alleged harassment was not severe or pervasive, and that it had appropriately responded to the conduct. With respect to the first hotel guest, the court found that his harassment could be considered pervasive, because it occurred more than 10 times over two years. However, her claim failed because she could not show the employer did not take prompt remedial action after it received notice pursuant to its anti-harassment reporting policies. Though she quickly reported the misconduct to her immediate supervisor, she waited nearly two years to follow the reporting channels provided by the anti-harassment policy. And then when she did notify HR, the employer took the allegation seriously and immediately implemented remedial measures and kept the guest away from the employee going forward.

The claim regarding the second guest also failed. His conduct was clearly severe, but the employer responded promptly—security appeared less than 10 minutes after the reported assault. Her claim regarding the statement by her coworker also failed because, while the comment was inappropriate and offensive, it was not severe or pervasive.

Retaliation claim also fails. As of the motion for summary judgment, the employee was still employed at the hotel bar. Her retaliation claim failed for several reasons. First, she presented no evidence that her schedule was changed in response to her harassment complaints or any other protected activity. Her assertion that her coworker retaliated against her by mispreparing her food orders could not support her claim because an employer is not generally liable for the retaliatory conduct of a coworker absent a showing that the retaliation was taken in furtherance of the employer’s business. The employee also asserted that she was retaliated against after she reported the coworker; the alleged retaliation came in the form of an “investigation” that attempted to place the blame on her. The court found that although the supervisor’s line of questioning after the employee reported her coworker was insensitive, it was not an actual investigation and was not materially adverse.

A Kentucky trial court did not err in dismissing constitutional challenges to the validity of the state’s “Right-to-Work Act,” ruled a divided Kentucky Supreme Court. Specifically, the lower court ruled that the Act did not violate the Kentucky Constitution’s provisions requiring equal protection under the laws, prohibiting special legislation, prohibiting takings without compensation, and declined to rule on whether the Act was properly designated as emergency legislation. The Kentucky high court concluded that “rational basis review” was appropriate for evaluating the Act since it was expressly permitted by Section 14(b). Accordingly, it found that the legislature clearly established a rational basis for the Act—to promote economic development and job growth and to remove Kentucky’s economic disadvantages in competing with neighboring states. Chief Justice Minton filed a separate concurring opinion in which Justices Hughes and Venters joined. Justice Keller filed a separate dissenting opinion, in which Justices Cunningham and Wright joined, and Justice Wright filed a separate dissenting opinion in which Justices Cunningham and Keller joined (Zuckerman v. Bevin, November 15, 2018, VanMeter, L.).

Under Section 14(b) of the NLRA, Congress authorized states to enact right-to-work laws that prohibit union shop agreements and agency shop agreements. In 2017, the Kentucky legislature passed the Kentucky Right to Work Act. This legislation amended KRS 336.130(3) to provide that no employee is required to become, or remain, a member of a labor organization, or to pay dues, fees, or assessments to a labor organization.

Constitutional challenges. In May 2017, an action was filed against the Commonwealth challenging the Act on several constitutional grounds. Thereafter, the Commonwealth filed a motion to dismiss. The unions subsequently filed a motion for partial summary judgment. The trial court issued an order denying the unions’ motion and granting the Commonwealth’s motion.

Before the Kentucky Supreme Court was the question whether the trial court erred in dismissing constitutional challenges to the validity of the Act, specifically that it violated the Kentucky Constitution’s provisions requiring equal protection of the laws, prohibiting special legislation, prohibiting takings without compensation, and whether it was properly designated as emergency legislation.

Equal protection. The Kentucky high court’s analysis began with the presumption that legislative acts are constitutional. Sections 1, 2, and 3 of the Kentucky Constitution provide that the legislature does not have arbitrary power and shall treat all persons equally. Because nearly all legislation differentiates in some manner between different classes of persons, neither the federal nor state constitutions forbid such classification per se. Rather, the level of judicial scrutiny applied to an equal protection challenge depended on the classification made in the statute and the interest affected by it.

Currently, three levels of review may apply to an equal protection challenge. Strict scrutiny applies whenever a statute makes a classification based on a “suspect” class. Heightened rational basis scrutiny applies to quasi-suspect classes. Rational basis review was appropriate for evaluating the Kentucky Right to Work Act since it is expressly permitted by Section 14(b).

Rational basis review. Under Kentucky case law it has been recognized that statutes relating to labor and labor organizations are proper objectives for exercise of the Commonwealth’s police power. The legislature “in making police regulations has the right to make classifications based upon natural and reasonable distinctions, but is without right to exercise the power to classify arbitrarily and without any reasonable basis inherent in the objects of the classification.” A statute complies with Kentucky equal protection requirements if a “rational basis” supports the classifications that it creates.

The unions argued that the Act created a classification that had no substantial or justifiable basis. However, the high court concluded that the legislature is permitted to set economic policy for the Commonwealth. Even assuming that the Act created a classification that discriminated between labor unions and all other organizations operating in the state, or any sort of classification among union and nonunion workers, the court was unable to say that the legislation did not have a reasonable basis for doing so. Here, the legislature clearly established a rational basis for the Act—to promote economic development, promote job growth, and to remove Kentucky’s economic disadvantages in competing with neighboring states. Accordingly, the Act did not violate the equal protection provisions of the Kentucky Constitution.

Special legislation. Next, the high court considered whether the Act constituted special legislation in violation of Sections 59 and 60 of the Kentucky Constitution. The court noted that the purpose of these sections is to “prevent special privileges, favoritism, and discrimination, and to ensure equality under the law . . . [and to] prevent the enactment of laws that do not operate alike on all individuals and corporations.”

Special legislation is defined as arbitrary and irrational legislation that favors the economic self-interest of the one or the few over that of the many. Kentucky case law has long recognized a simple, two-part test for determining whether a law constitutes general legislation in its constitutional sense: (1) equal application to all in a class, and (2) distinctive and natural reasons inducing and supporting the classification.

In this instance, the Act applies to all collective bargaining agreements entered into on or after January 9, 2017. With the exceptions required by federal law, it applies to all employers and all employees, both private and public. It does not single out any particular union, industry, or employer. Thus, the legislature clearly established a rational basis for the Act.

Taking without just compensation. Next, the unions argued that the Act constituted a public taking of labor union property without just compensation, in violation of Sections 13 and 242 of the Constitution. First, they argued that the Act takes union property because unions are required to provide valuable services to all employees in a bargaining unit irrespective of union membership without being compensated in return. Second, they asserted that the Act takes from unions without compensation their valuable contract right that all employees share in the cost of representation in future renewals of CBAs. However, the court noted that other courts have held that unions are fully compensated for any loss of fees from nonmembers through the exclusive representation designation. This analysis applied equally to private sector employees. Because exclusive designation fully and adequately compensates unions for free-riders, the Act did not constitute a taking of private property without compensation.

Emergency legislation. Finally, the unions argued that the legislature impermissibly designated the Act as emergency legislation in violation of Section 55 of the Kentucky Constitution. The trial court reasoned that it was not the proper body to determine whether the stated emergency existed, and that the legislature was merely required to state an emergency purpose. In this case, although the unions disagreed, the high court was unable to conclude that the legislature’s proffered reason for an emergency had no rational basis. Therefore, it declined to disturb that determination. Accordingly, the court found that the union’s constitutional challenges to the Act were without merit.

Triable issues existed as to whether lifting was an essential function of a nurse’s job and whether a hospital acted unreasonably in denying her request to use the “buddy system” or assistive devices as a reasonable accommodation for her shoulder injury. Denying the employer’s motion for summary judgment on the EEOC’s failure-to-accommodate claim brought on the nurse’s behalf, a federal district court in Mississippi found that while the job description listed the lifting requirements, a safety manual and testimony by hospital staff indicated that nurses often received assistance when moving and lifting patients. Moreover, an internal email suggested that management never intended to accommodate her (EEOC v. Wesley Health System, LLC, November 14, 2018, Starrett, K.).

Discharged after injury. The nurse, who worked in the hospital’s Transitional Care Unit (TCU), took medical leave after she injured her shoulder. She was subsequently released to return with lifting restrictions. However, the hospital determined that she could not safely return to her position in the TCU since lifting and pushing patients was an “essential function” of her job. Though the hospital told her she could apply for any vacant position for which she was qualified, she was denied the position for which she applied and ultimately terminated.

Was lifting an essential function? The hospital first argued that the nurse was not qualified since she could not perform the essential functions of lifting or carrying at least 50 pounds or pushing up to 300 pounds. Relying upon the non-exhaustive list of factors set forth in the EEOC regulations, the court disagreed. Despite the job description, other evidence created a triable issue as to whether the lifting and pushing requirements were essential functions.

The job description required the nurse to “frequently” lift and carry 50 pounds or more and to push up to 300 pounds. However, the hospital’s safety guidelines stated that staff should “ask for assistance when the load is too large or too heavy,” seemingly anticipating that staff would seek and receive assistance when lifting patients. Additionally, both the nurse and other hospital personnel provided testimony indicating that TCU nurses always sought and received assistance in lifting patients, were not frequently required to lift more than 50 pounds, and could utilize devices that helped move and lift patients.

For instance, the nurse testified that TCU nurses never moved patients alone and “used the buddy system” since “you could injure the patient or you could injure yourself.” She also said there was always enough staff to get help and that she had never had to support the full weight of a patient on her own. Additionally, she described devices for lifting, moving, and/or transferring patients, such as chair lifts and bed lifts. And while she affirmed that she was sometimes required to lift and/or carry 50+ pounds, she could “call rapid response” for assistance in an emergency.

The nursing director testified that TCU nurses did not lift ambulatory patients but instead assisted them up. She also testified that TCU nurses always got help when moving patients. And while she stated that they should be able to move patients on their own, they were not required to frequently lift more than 50 pounds. The administrator of the TCU also confirmed that staff sometimes used a buddy system to transfer patients and confirmed the availability of assistive devices. However, he elaborated that the job was “very physically demanding” and that assistance “can’t be guaranteed.”

Reasonable accommodation offered? The court also rejected the hospital’s assertion that it offered the nurse a reasonable accommodation by assisting her in identifying and applying for an available position that did not require heavy lifting. The EEOC claimed that the hospital could have allowed her to lift with assistance and presented evidence indicating that nurses always sought and received assistance in lifting patients, were not frequently required to lift more than 50 pounds, and could use assistive devices. Thus, if it was the common practice in the TCU for nurses to receive assistance when lifting or moving patients, then the nurse’s proposal that she receive such assistance would have been a reasonable accommodation.

Email suggests lack of good faith. A jury could also reasonably infer that the hospital failed to engage in the interactive process in good faith. The nurse was injured in April and she took leave until July. On July 15, she attempted to return to work, but the hospital would not permit her to do so because of lifting restrictions in the latest report from the nurse’s doctor. It officially terminated her on August 8, after it rejected her application for another position. However, on June 24—three weeks before it even knew about her restrictions—the nursing director sent an email to the chief nursing officer stating that the HR director had approved replacing the nurse.

In particular, the email said that “we are doing it by the book” but “this is a nurse [we] would rather not have back. She says she is coming back with restrictions. That’s good because she can’t work with restrictions, so just FYI, her FMLA will be up next week, so just wanted you to be aware if you see TCU night nurse position come across. We really need it filled. Again, we are going to follow [HR’s] lead but want to be able to hire ASAP when all is settled.” And at her deposition, the director admitted that she did not want the nurse to return, testifying she was “a chronic complainer.” On this record, a jury could reasonably infer that the hospital never intended to accommodate the nurse and used her condition as an excuse to get rid of her.

Even though a black employee who was fired for violating her casino employer’s no-tip policy had the same job title, duties, and supervisors as her white coworker, who was only given a warning for violating the same policy, they were not similarly situated for purposes of the employee’s Title VII race discrimination claim, a federal district court in Louisiana ruled, granting her employer’s summary judgment motion. Although there was no formal written policy, the employee, who had been employed for seven months when she accepted three $20 bills on behalf of herself and her two coworkers, was aware of the policy while her coworker, who had only been working there for two weeks, had not yet been trained on the policy (Nathan v. PNK (Baton Rouge) Partnership, November 14, 2018, Dick, S.).

Hired in a guest services position by the casino/hotel, the employee was directly supervised by another African-American woman and her second-level supervisor (SLS) was white. The SLS, the employee claimed, habitually targeted, harassed, and intimidated minorities. Not long after she began working, the employee alleged, she was offered a piece of candy by the SLS’s friend, who was also a manager, and when she did not accept, she was verbally reprimanded. Afterward, she claimed, the SLS instructed her supervisor to write her up for coming in late when her schedule had been previously changed and for using Facebook during work even though other employees routinely did the same thing.

Tipping incident. Seven months after she was hired, a customer left tips for the employee and two others on a counter where they worked. Although she insisted they could not accept tips, he walked away. According to the employee, she picked up the three $20 bills and attempted to give one to her African-American coworker, who refused it. The employee then took the money to the back room where she placed one bill in the coworker’s purse, gave one bill to her white coworker, and kept the other for herself. She was subsequently terminated for violating the no-tip policy while, she alleged, neither coworker was disciplined for the incident. The SLS was on the team that made the termination decision.

Not similarly situated. At issue in her Title VII race discrimination claim was whether her white coworker was a proper comparator. The employer did not contest that both were similarly situated in terms of job title, duties, and supervisors. Rather, it argued that the coworker, who had only been employed for two weeks at the time of the incident, had not yet been fully trained. Nor, it contended, did they have comparable violation histories. For her part, the employee claimed that she also had never been formally trained on the policy but only knew about it from others. Thus, she asserted, they both lacked formal training on the policy.

Finding that the coworker was not a similarly situated comparator, the court noted it was undisputed the employee had been employed seven months at the time of the incident as compared to the coworker’s two weeks. It was also undisputed she was fully aware of the policy. Her supervisor testified that the employer maintained a tipping policy and confirmed that managers trained employees on the policy within their department rather than provide a formal written policy for an employee’s signature. And despite knowledge of the policy, the employee took the tips and distributed them to her coworkers and herself.

Surveillance video. Particularly fatal to her claim, observed the court, was the surveillance video that captured the entire incident. While that video showed the white coworker accepting a $20 bill from the employee, it also showed the African-American coworker refusing to take any of the money. Nonetheless, the employee placed a bill in purse, which she did not discover until after she left work. Thus, considering the alleged comparator’s lack of training and experience on the job and the employee’s primary, culpable role in the incident, the court found they were not disciplined differently under nearly identical circumstances.

Pretext. Nor was there any evidence of pretext. While the employee argued there was no written proof the tip policy was furnished to guest services workers, written proof was irrelevant where she admitted she knew accepting tips violated company policy and her supervisor testified that she trained the employee regarding the policy. And given the video surveillance evidence, the court also rejected her claim that her employer could not prove she “incited” anyone to accept a tip. As to testimony from the HR director that you would not be disciplined or terminated if you reported a tipping incident, the court also noted the HR director’ testimony that the employee returned the tip the next day only after “she got caught.”

Further, said the court, there was absolutely no evidence any of the employer’s actions were based on the employee’s race. Both her direct supervisor and the HR director were African American and both were involved in the termination decision along with the SLS.

An employee’s unauthorized review and disclosure of confidential personnel files to support her claims of race and religious discrimination was not protected activity under Title VII, ruled the Fourth Circuit, concluding that the statute did not protect “illegal actions.” In this instance, the employee did not meaningfully dispute that her actions violated a state law that prohibits “knowingly, and willfully examining…, removing, or copying any portion of a confidential personnel file” without authorized access (Netter v. Barnes, November 15, 2018, Motz, D.).

The employee, a Black and Muslim woman, worked for the sheriff’s office for approximately 19 years, most recently as a detention services supervisor. For more than 16 years, she compiled an unblemished disciplinary record. However, in April 2014, she received a disciplinary sanction that barred her from testing for a promotion. She filed timely complaints with the sheriff’s office and EEOC alleging that similarly situated officers, who were neither Black nor Muslim, had not been similarly disciplined.

Disclosure of confidential personnel files. In following up with her complaint, an investigator for the county HR office asked the employee if she had evidence to support her discrimination claims. In response, the employee reviewed, copied, and supplied the investigator with confidential personnel files that were stored in a file cabinet in her shared office. She also provided the investigator with the personnel files of three other employees who worked at another detention facility.

The employee acknowledges that she knew that the files were confidential but nonetheless did not seek permission from the five employees or her own supervisors to copy and disclose them. Additionally, she gave copies of all five files to the EEOC and the lawyer representing her in this suit. During discovery, her attorney provided copies of the files to the sheriff. This led the sheriff’s attorney to inquire how the employee obtained the files. The employee admitted she copied them.

Discharge. As a consequence, a professional standards officer in the sheriff’s office recommended that the employee be terminated on three grounds: (1) she violated department policy restricting the unauthorized review, duplication, and dissemination of those records; (2) she failed to conform to the work standards of her position; and (3) she violated N.C. Gen Stat. § 153A-98, a state law which imposes criminal penalties for reviewing and disseminating information in county personnel files without authorization. The sheriff upheld the recommendation and discharged the employee.

The employee filed a new charge with the EEOC, contending that the sheriff fired her for engaging in activity protected under Title VII. However, the district court granted the employer’s motion for summary judgment against all of the employee’s claims. On appeal, she challenged only that portion of the order dismissing her retaliation claim.

Retaliation claim. Section 704(a) of Title VII expressly prohibits retaliation by an employer against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” Section 704(a) shields from retaliation two categories of activity: participation and opposition. For participation and opposition claims, the plaintiff bears the burden of establishing that unlawful retaliation “would not have occurred in the absence of the alleged wrongful action or actions of the employer.”

Because the parties did not dispute the facts, the sole issue before the court was whether Title VII protects the employee’s conduct against retaliation. The employee principally argued that her entire course of conduct constituted protected “participation” activity under the anti-retaliation protections of Title VII. Alternatively, she asserted that her review and disclosure of files to the HR investigator constituted protected “opposition” activity.

Opposition clause. Quickly disposing of the employee’s “opposition” argument, the Fourth Circuit concluded that under the opposition clause, unauthorized disclosures of confidential information to third parties are generally unreasonable. The appeals court rejected the employee’s attempt to justify her conduct on the basis that she reasonably believed that the investigator had a right to access employee personnel files. Even if she was correct as to the disclosures, her review of the files, for which she lacked permission to access for this purpose, fell outside the scope of reasonable opposition.

Participation clause. The participation clause offers more capacious protection for conduct in connection with Title VII proceedings, the appeals court noted, observing that application of the participation clause must account for the evidentiary difficulties many plaintiffs face when pressing claims of workplace discrimination. Still, the court declined to find that the employee’s unauthorized inspection and copying of the personnel files constituted protected participation activity, because in this instance, she violated a valid, generally applicable state law.

The employee did not meaningfully dispute that her actions, standing alone, violated N.C. Gen Stat. § 153A-98(f), which establishes a Class 3 misdemeanor for “knowingly, and willfully examining…, removing, or copying any portion of a confidential personnel file” without authorized access. As with an opposition clause case, “illegal actions” do not constitute “protected activity under Title VII.”

Finding that the employee’s unauthorized review and duplication of confidential personnel files did not constitute protected opposition or participation activity, the appeals court affirmed the judgment of the district court.

Reversing judgment as a matter of law to an employer at the close of evidence at trial, the Fifth Circuit ruled that a jury should have decided whether an employee who was fired two weeks after suffering a work-related injury proved a causal connection in his claim of workers’ compensation retaliatory discharge under Texas law. In addition to the “stark temporal proximity,” the record suggested that the employer did not follow its progressive discipline policy, gave shifting explanations, and had previously fired employees who filed workers’ compensation claims. There was also evidence that the decisionmaker placed the employee in an “invented” position with no training, engaged in “odd and suffocating behavior,” and made comments indicating his hostility toward the employee’s workers’ compensation claim (Cristain v. Hunter Buildings & Manufacturing, L.P., November 14, 2018, Haynes, C.).

Work-related injury. The employee was hired in August 2014 as a “helper” and his job duties included painting, maintenance, and cleaning. On February 5, 2015, he was injured when a scaffold he was using while cleaning a ceiling collapsed. After the safety manager eventually took him to a doctor, he was diagnosed with a lumbar strain and released to work “as tolerated.”

The manager was not his supervisor and had only seen him once or twice before the accident. Nevertheless, after the injury, he purportedly began to “dominate” the employee’s life. This included quarreling about his request to take the next day off to recover, showing up at his house that Sunday to “check on him,” and insisting on driving him to work and the doctor.

Disciplined in “invented” job. Eight days after the accident, and a few days after the filing of workers’ compensation (WC) paperwork, the manager placed him in a “flow monitor” job. The employee claimed that he was not well-suited for this “invented” position and that it was created so that the manager would become his supervisor. The manager immediately accused him of taking unauthorized breaks. Three days later, he gave him a verbal warning for allegedly failing to pick up paperwork and documented his “unsatisfactory work quality” and “working on personal matters.”

Discharged after two weeks. Meanwhile, the manager concluded that the scaffold accident was the employee’s fault. He called him into a meeting to discuss the matter and ultimately terminated him. While the employee claimed that he was immediately fired, the manager claimed the employee became belligerent and profane at the meeting, leading to the discharge. In any event, the termination occurred 15 days after the accident and 11 days after the employee filed the WC documentation.

The employee denied yelling or cursing at the meeting and his termination notice did not mention any abusive language or prior incidents. Rather, the only boxes checked were for “Violation of Safety Rules” and “Violation of Company Policy/Practices.” Under “Description of the Incident,” the manager wrote that the employee “took it upon himself to utilize a scaffold of which he was not trained or authorized to use” and “failed to perform a job hazard analysis for task assigned.”

Causal connection. The Texas Supreme Court has held that circumstantial evidence sufficient to establish a causal link for purposes of a WC retaliation claim under Texas law includes: (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. A Texas court of appeals has also suggested that temporal proximity may establish a causal connection when the events “are separated by weeks, as opposed to months and years.”

Evidence supports claim. With this legal backdrop, the Fifth Circuit found sufficient evidence of retaliation to support a jury verdict in the employee’s favor. First, there was “stark” temporal proximity as he was fired about two weeks after his injury. It was also undisputed that the decisionmaker—the safety manager—was aware of the WC claim. He also undisputedly failed to follow the progressive discipline policy, which began at step one (a verbal warning) and progressed to step five (termination). It was hotly disputed, however, whether immediate firing might have been justified since the employee denied that he cursed and yelled at the manager. In this regard, the discrepancy between the employee’s termination paperwork and the manager’s testimony was a credibility issue that would be for the jury to assess.

The employee’s showing of causation was also supported by evidence concerning the manager’s “expression of a negative attitude” and dissimilar treatment of “similarly situated” employees. In addition to the manager’s “odd and suffocating behavior,” he repeatedly made statements indicating doubt about whether the employee was actually injured. For example, he referred to the employee’s “supposed injury” and called his physical limitations “self-imposed.” A jury could reasonably infer a negative attitude towards the employee because of his WC claim.

The “similarly situated” employee prong was difficult to determine given the varying reasons for the termination and the fact that the employer controlled the evidence of this issue. At trial, the employee presented evidence of the company’s actions toward other employees who filed WC claims between January 2012 and December 2015. During that time, 11 other employees filed claims for work-related injuries. Two of the 11 were terminated within 30 days of their injury, four others were terminated within 90 days, and one other was terminated within 150 days. Finally, evidence of the company’s shifting explanations for his termination supported the notion that the stated reason for discharge was false.

A trucking company that told the IRS per diem travel payments made to truckers were reimbursements for travel expenses, but nevertheless included those payments in its calculation of minimum wages under the FLSA, was not taking an inconsistent position, the Eighth Circuit ruled, affirming dismissal of class claims by the truckers. The two calculations were “done for different purposes and under entirely unique regulatory schemes.” Moreover, there were “seemingly obvious indicators” that the payments made functioned as a wage and the district court did not err in reaching that conclusion. The appeals court affirmed the lower court’s decision dismissing the drivers’ minimum wage claims (Baouch v. Werner Enterprises, Inc. dba Werner Trucking, November 14, 2018, Beam, C.).

More take-home pay as incentive. According to the lawsuit filed by the truckers, their employer implemented a payment plan in 2003, offering drivers an untaxed mileage rate for days spent driving away from home overnight that was intended to attract new employees. The payments were not subject to employment and income tax withholding. Thus, drivers took home more pay each week. Drivers, however, could elect not to participate in the Payment Plan and, if so, could receive all of their pay subject to taxes. The employer included the Payment Plan payments in its minimum wage calculations under the FLSA, the Nebraska Wage and Hour Act, and the Nebraska Wage Payment and Collection Act for the drivers who elected to receive them. Nevertheless, the district court noted that the taxable wage received by participating employees was “suspiciously close” to the total taxable wage of nonparticipants.

Drivers argued wage violations. The drivers argued that the employer should not have included the payments in the minimum wage calculations for the participating drivers. They claimed that had they been properly excluded, the wage rate they received would not satisfy the minimum wage requirements. In making that argument to the district court, the drivers contended that the employer’s stance under the FLSA was also inconsistent with its representations to the IRS. With regard to the FLSA, the drivers argued, the employer described the payments as ones that were not reimbursement for reasonable travel expenses, but to the IRS the employer instead represented that the payments were reimbursement for travel expenses that it reasonably expected its drivers to incur. These representations were inconsistent and legally incongruent, the drivers asserted.

Claims dismissed, appeal. Nevertheless, the district court held that the payments were part of the regular rate, concluding the indicators pointed the court toward a conclusion that the purpose and form of the payments indicated the intended purpose of the payments was remuneration for work performed under the FLSA. The district court rejected the judicial estoppel argument, noting that the IRS regulations that governed such plans were not necessarily compatible with the DOL regulations that governed employees’ regular rates for the purposes of minimum wages. The drivers appealed.

Not estopped. “A primary thrust” of the drivers’ argument on appeal was their claim the employer’s statements to the IRS regarding the payments were binding admissions. Those admissions, the drivers argued, were all that was necessary to exclude the payments from the wage calculations. The appeals court disagreed, however, concluding that as a matter of law judicial estoppel did not apply and the employer was not bound to its statements in such a way that would affect the outcome of the case. The prior representations made by the employer to the IRS were not clearly inconsistent with the position taken by the employer in this litigation, the court explained, because the IRS regulations in question were not identical to the DOL regulations that governed the calculation of regular rates for the purposes of minimum wages. Thus, legal estoppel did not apply.

Moreover, under a “quasi-estoppel” theory, the drivers’ arguments were no more successful. While confusion could result from the similarities in the employer’s representations under each framework, it was reasonable for the district court to hold that the employer was not estopped “nor beholden to earlier representations in a legally binding way.” Each calculation was “done for different purposes and under entirely unique regulatory schemes.” The employer “is not cabined in the instant case to a particular representation of ‘reimbursement’ as might have been germane in previous IRS proceedings,” the court concluded.

Minimum wage paid. A “case-specific factual inquiry” was necessary to determine whether the employer violated the FLSA because whether a per diem could be included or excluded from the regular wage was dependent on several factors. The district court did not err in its analysis, the appeals court concluded. The payments, based on the miles driven, were therefore based on hours worked, the court explained, and therefore correctly included in the regular rate calculation. The DOL Handbook, which is treated as persuasive authority, provides that if the amount of a per diem varies with the number of hours worked, that payment is part of the regular rate. Thus, it supports the understanding that “at the end of the day under the FLSA, one important criterion is whether a payment is remuneration for employment, or not.”

And, notable in this case, the court explained, were the “seemingly obvious indicators that these Payments function as a wage.” The total pay, including the payments plus the applicable taxable wage, provided to participating drivers was “suspiciously close to the taxable wage paid to non-participants.” Other factors—including the form and purpose of the payments, that they were unrestricted in terms of how they were used, the original impetus for offering the plan (market competition), and the goal to maximize take home pay—also led to the conclusion that they were intended to act as remuneration for work.

The same reasoning applied under the FLSA also foreclosed the drivers’ state-law claims, the court added. Thus, it affirmed dismissal of both the federal and state-law claims.

A Forever 21 district manager fired for poor performance—six of his stores had been identified as bottom performers—shortly after his manager learned he was on medical leave for cancer, established fact issues as to whether he was a qualified individual who could have performed his job with a reasonable accommodation of additional leave. Nor could the retail chain show his request for an extended medical leave was per se unreasonable, said a federal district court in Oregon, denying summary judgment against his state-law disability discrimination claim and granting him leave to amend his complaint to include a claim for punitive damages (Estep v. Forever 21 Retail, Inc. dba Forever 21, November 13, 2018, Beckerman, S.).

Promoted to district manager in 2014, the employee was temporarily tasked a year later with overseeing additional stores. Around that same time period, Forever 21, faced with declining domestic performance, began taking a closer look at underperforming district level managers. By December 2015, the employee was identified as one of 15 “Bottom Performers.” He was also the district manager of six stores identified by the CEO as being in the bottom 100. As a result, Forever 21 contended, his manager decided to terminate the employee around the end of 2015. She took no action, however, at that time.

Medical leave. Also in December 2015, the employee requested two personal days from work because he was not feeling well. In late January 2016, he told his manager he would be on medical leave for an unspecified reason. He was on approved FMLA from January 25 to April 18, and unpaid leave until June 20, when he sought additional “estimated” leave until October (ultimately he could not return to work full-time until January 2017).

Fired. After he had exhausted his leave of absence in June, a senior HR manager informed the employee’s manager that he could be fired. Around that same time, his manager learned he was on medical leave because he had cancer. He was fired shortly thereafter, purportedly as a result of his earlier performance issues. The employee then sued for disability discrimination in violation of ORS Section 659A.112.

Qualified individual. Because he was unable to perform the essential functions of district manager, Forever 21 argued, the employee was not a qualified individual under the statute. While Forever 21 claimed his stores were not meeting company standards and his manager had decided to terminate him in November 2015, which was before he went on leave and before she learned he had cancer, the employee pointed out that before he left on sick leave, he never received a negative performance review or was otherwise notified he was underperforming. Further, as part of a district manager alignment proposal in March 2016, his manager designated the employee as the district manager for two districts.

Despite her apparent intention to retain him as of March 2016, the court observed, his manager “greenlighted” the decision to terminate him after she learned of his cancer diagnosis three months later. In addition, despite its general policy not to provide severance to employees terminated for performance issues, Forever 21 offered him a severance package. Because a reasonable jury could find the employee was a qualified individual who could have performed his job duties with a reasonable accommodation of additional leave, summary judgment was denied on this ground.

Reasonable accommodation. After finding the employee’s multiple requests for leave to treat and recover from cancer were adequate notice of the need for an accommodation of extended leave, the court addressed whether his need for an extended leave of up to one year was per se unreasonable. In arguing that it was not reasonable, Forever 21 cited the Seventh Circuit’s decision in Severson v. Heartland Woodcraft, Inc., which held that “[a]n employee who needs long-term medical leave cannot work and thus is not a ‘qualified individual’ under the [American with Disabilities Act].” Declining to follow Severson, the court explained that under established Ninth Circuit law “an extended unpaid medical leave may be a reasonable accommodation if it does not pose an undue hardship on the employer.” And here, Forever 21 made no showing of an undue hardship if the employee had remained on leave for another six months. Nor was his leave request indefinite, the court pointed out, noting that before he was terminated, he notified Forever 21 that he could return full-time in January 2017.

Pretext. Although Forever 21 offered a legitimate, nondiscriminatory reason for terminating the employee—poor performance— a reasonable juror could find a discriminatory reason for the adverse action said the court, pointing to the same reasons already discussed: temporal proximity; no adverse performance reviews; no notice to the employee of substandard performance; layoff as the stated reason for separation; the severance package provided to him; his manager’s apparent intention to retain him before learning of his cancer diagnosis; and no evidence of a definitive decision to terminate him before she learned of his cancer diagnosis.

Punitive damages. In allowing the employee to amend his complaint to include a claim for punitive damages, the court first found no inexcusable delay. He learned of facts relevant to his punitive damages claim for the first time in April and May of 2018, and he filed his motion for leave to amend on May 24. Nor was the claim futile, said the court, noting that based on the allegations set forth in his amended complaint, a reasonable juror could find Forever 21 acted with malice by terminating him upon learning that he had cancer.

Siding with the employer in a closely watched case, a divided Eighth Circuit panel declined to revive an EEOC lawsuit alleging that a hospital engaged in unlawful retaliation by rescinding its conditional offer of employment to a Seventh Day Adventist nurse because she sought a religious accommodation of the collectively bargained requirement that she work every other weekend. Concluding that the issue of whether requests for religious accommodations are protected activity under Title VII’s antiretaliation clause “cannot be resolved categorically,” the panel majority held that there was no basis for an opposition-clause retaliation claim here since the applicant’s request was denied by an employer that had a policy of accommodating reasonable requests that did not cause undue hardship. Thus, her exclusive Title VII remedy was a disparate treatment or disparate impact claim. Interpreting Supreme Court and Eighth Circuit precedent differently, Judge Grasz would have reversed the grant of summary judgment (EEOC v. North Memorial Health Care, June 12, 2018, Loken, J.).

Conditional offer revoked. As part of its “Advanced Beginner Program” to attract diverse employees, the hospital emailed the applicant and asked her to apply. During her interview, she learned that the applicable union contract would require her to work every other weekend. However, she did not disclose that her religion would prevent her from working Friday nights. After she was conditionally offered a job and advised that she would be scheduled to work every other weekend, she told HR that she could not work Friday nights/Saturday mornings for religious reasons. HR replied that the union contract required weekend work and if she could not work it, the hospital might have to offer the job to someone else. She responded that she could make it work, and would either find someone to work her shift or come in herself. Concerned that this was not a workable solution, the hospital advised her that it could not accommodate her request and revoked the job offer. It also said it would consider her for other positions, but she was unsuccessful in her application.

The EEOC sued on her behalf. However, while the applicant’s Title VII charge alleged disparate treatment, the EEOC only advanced a claim for retaliation under Title VII’s opposition clause.

District court rules against EEOC. The district court granted summary judgment in favor of the hospital. It found that contrary to EEOC guidance, requesting a religious accommodation—as contrasted with opposing the allegedly unlawful denial of a religious accommodation—was not a protected activity. The court found unpersuasive the EEOC guidance on retaliation, as well as related ADA precedent, basing its holding on its reading of the plain language of Title VII instead.

Entitled to reasonable accommodation. The Supreme Court’s decision in EEOC v Abercrombie & Fitch Stores, Inc., made clear that the job applicant was entitled to reasonable accommodation of her religious practice as a Seventh Day Adventist, explained the Eighth Circuit. Moreover, it was undisputed that the hospital’s policy and practice at that time was to consider requests for religious accommodations on a case-by-case basis, and to grant requests that did not impose an undue hardship.

What did applicant oppose? The term “oppose,” being left undefined by Title VII, carries its “ordinary meaning.” In Crawford v. Metro. Gov’t of Nashville and Davidson Cty., the Supreme Court held that when an employee communicates his or her belief that an employer has engaged in a form of employment discrimination, “that communication virtually always constitutes the employee’s opposition to the activity.” The question here, therefore, was: what “form of employment discrimination” did the applicant oppose?

The EEOC urged the Eighth Circuit to follow its decision in Ollis v. Hearthstone Homes, Inc., upholding a jury verdict that an employer violated Title VII by firing an employee because he did not want to participate in an activity that conflicted with his religious beliefs. The EEOC argued that in requesting an accommodation, the applicant was similarly complaining that requiring her to work Friday shifts conflicted with her religious beliefs. However, this was a “false equation,” the appeals court said, as she did not complain that the hospital unlawfully refused to accommodate. Rather, she requested an accommodation and the hospital’s nondiscriminatory practice was to consider such requests on a case-by-case basis. After she made the request and no mutually acceptable accommodation was reached, her Title VII remedy as an unsuccessful job applicant was a disparate treatment claim for failure to reasonably accommodate.

Request not same as oppose. The majority rejected the EEOC’s (and dissent’s) position, relying on the circuit’s decisions applying the retaliation provisions of the ADA, that she had an opposition-clause retaliation claim simply because her request for an accommodation was statutorily protected activity. Whether an employee or job applicant must make a request for religious accommodation to maintain a Title VII claim for religious discrimination was an open question after Abercrombie & Fitch, but the express reference to religious accommodation in § 2000e(j) can be construed “as evidencing Congress’ intent to protect requests for religious accommodation.” However, the fact that such a request is “protected activity” does not mean it is always “oppositional” activity.

Accommodation denied based on policy. Sometimes such a request will be “oppositional” activity, such as when an applicant makes a good-faith religious accommodation request, and the employer denies the accommodation on the ground that it was not in fact based on a religious practice, but then refuses to hire the applicant because she made the request. There, the reasoning in ADA cases would support an opposition-clause retaliation claim even if the employer successfully defended a disparate treatment claim. But where, as here, an applicant requests a religious accommodation, and the request is denied by an employer that accommodates reasonable requests that do not cause “undue hardship,” there is no basis for an opposition-clause retaliation claim.

Thus, even assuming the applicant’s request for a religious accommodation was made in good faith, her request did not reflect—much less communicate—opposition or resistance to any hospital employment practice. Though she may have a claim of discrimination, as a job applicant with no prior employment relationship with the hospital, her failure to obtain the position she sought did not give rise to a claim of unlawful retaliation. Accordingly, dismissal of the EEOC’s retaliation claim on summary judgment was affirmed.

Dissent: Request was opposition. Judge L. Steven Grasz relied on the Supreme Court’s broad interpretation of Title VII’s opposition clause in Crawford, as well as the “near-universal consensus of circuit courts of appeals interpreting almost identical statutory language in the ADA,” to reach the conclusion that the applicant’s request for a religious accommodation qualified as “opposition” to an unlawful employment practice under Title VII. In his view, since there were triable issues as to the other elements of the EEOC’s claim, the district court’s grant of summary judgment should have therefore been reversed.

“Common sense dictates that requesting a religious accommodation in most circumstances communicates support for the grant of the request and opposition to its denial,” Grasz explained. Moreover, “adopting too high a standard for opposition could have the unintended effect of forcing requesters to take a confrontational approach in order to be afforded Title VII’s protections against retaliation.” And because the Eighth Circuit has said that retaliation claims under the ADA are analyzed “identically to those brought under Title VII,” Title VII’s anti-retaliation provision should be read “in harmony” with how the Eighth Circuit has read the same provision in the ADA.

After also taking issue with the majority’s examples of what would constitute “opposition,” the dissent found value in the majority’s “apparent concern that Title VII not be read so that meritless discrimination claims based on a failure to accommodate may simply be repackaged and resurrected as retaliation claims.” However, the causation element properly weeds out such claims—not the opposition requirement. Unlike such repackaged claims, the claim here should survive because there was evidence of retaliation: despite the applicant’s willingness to work the job even without the accommodation (she told HR that she would show up for work if she could not find a replacement), the hospital withdrew its job offer, making it reasonable for a jury to infer that it did so because she had requested an accommodation.